Texas Constitution:Article V, Section 21

Adopted February 15, 1876:

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Editor Comments

This section is similar to the due-process clause contained in the Fourteenth Amendment to the federal constitution ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). Cf. Zucht v. King, 260 U.S. 174, 176 (1922) ("Long before this suit was instituted, Jacobson v. Massachusetts, 197 U.S. 11, had settled that it is within the police power of a State to provide for compulsory vaccination. . . . And still others had settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law.").

The fundamental precept declared by this section has its origin in chapter twenty-nine of Magna Carta. See Cooley, A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union 351-53 (1874) (citations omitted) ("In some form of words, it is to be found in each of the State constitutions . . . . Indeed, the language employed is generally nearly identical, except that the phrase 'due process (or course) of law' is sometimes used, sometimes 'the law of the land,' and in some cases both; but the meaning is the same in every case.").

Note that the Texas Attorney General, in Tex. Att'y Gen. Op. KP-308 (2020), opined that: "While the Texas and federal Constitutions differ in that Texas refers to 'due course' rather than 'due process,' Texas courts regard these terms as without substantive distinction unless and until a party demonstrates otherwise." The foregoing assertion by the Texas Attorney General is correct concerning "procedural" due process. However, as reflected by several of the decisions referenced below, the state's "substantive" due process jurisprudence has sometimes differed from its federal counterpart.

—Attorney Steve Smith

Recent Decisions

• Texas Dep't of State Health Servs. v. Crown Distributing LLC, 647 S.W.3d 648, 664-65 (Tex. 2022) (J. Young, concurring) ("The Court today 'conclude[s] that the due-course clause does not protect the interest that the plaintiffs assert,' ante at 2, 125 S.Ct. 2195, and I agree. But what does that clause protect—and how does it do so? We still do not really know, even as we approach . . . . To that end, in Part II, I explain why I believe that our precedents do not go much beyond what has permeated most of our jurisprudence: the unadorned assertion that the Texas due-course clause is essentially the twin (the junior twin, to be sure) of the federal due-process clause.")

• Mosley v. Texas Health & Human Services Comm'n, 593 S.W.3d 250, 265 (Tex. 2019) ("We measure what process is due under a 'flexible standard' that depends on 'the practical requirements of the circumstances.' Id. This standard includes three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id.")

• Patel v. Texas Dep't of Licensing & Reg., 469 S.W.3d 69, 91 (Tex. 2015) (citation omitted) ("[T]he Chief Justice refers to rediscovering and unleashing 'the Lochner monster' if legislative enactments are measured against a standard other than the rational relationship standard. But as discussed above, Texas courts, including this Court, have expressed and applied various standards for considering as-applied substantive due process claims for over a century. And it is those decisions on which the standards we set out today are based. Surely if those cases represented a 'monster' running amuck in Texas, this Court would have long ago decisively dealt with it.")

• Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015) (citations omitted) ("Before any substantive or procedural due-process rights attach, however, the Petitioners must have a liberty or property interest that is entitled to constitutional protection. A constitutionally protected right must be a vested right, which is ''something more than a mere expectancy based upon an anticipated continuance of an existing law.'' The court of appeals held, and we agree, that the Petitioners' due-course claims are facially invalid because the Petitioners have no vested property right to the pension-plan contributions and future retirement benefits at issue.")

• Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) (citations omitted) ("The Texas Constitution . . . . We have recognized that our due course of law provision at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. And, under certain circumstances, the right to be heard assures a full hearing before a court having jurisdiction over the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and the right to judicial findings based upon that evidence. This right also includes an opportunity to cross-examine witnesses, to produce witnesses, and to be heard on questions of law.")

Historic Decisions

• University of Texas Medical School at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (citations omitted) ("While the Texas Constitution is textually different in that it refers to 'due course' rather than 'due process,' we regard these terms as without meaningful distinction. As a result, in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues. Although not bound by federal due process jurisprudence in this case, we consider federal interpretations of procedural due process to be persuasive authority in applying our due course of law guarantee.")

• In re J.W.T., 872 S.W.2d 189, 221 (Tex. 1994) (J. Cornyn, dissenting) ("An appellate court's identification in its opinion of an established . . . . In this case, however, under the guise of an independent state constitutional interpretation, the court 1) disregards contrary precedent by the United States Supreme Court; 2) eschews our traditional constitutional analysis and creates a new constitutional right nowhere found in the text of the Texas Constitution or its history; 3) revives substantive due process in a particularly arbitrary new form; and 4) fails to identify and consider any of the substantial countervailing state interests reflected in these statutes.")

• Itz v. Penick, 493 S.W.2d 506, 509 (Tex. 1973) ("A much more enlightened view of the necessity for immunization of students attending elementary and secondary schools and institutions of higher education in order to lessen the spread of communicable diseases has been adopted by the legislatures and approved by the courts of Texas and a majority of the other states during the past half century. All of appellants' points of error have been heretofore assigned in challenging the constitutionality of compulsory immunization statutes, city ordinances or school district regulations and overruled in one or more of the following Texas cases: . . . .")

• Texas Power & Light Co. v. City of Garland, 431 S.W.2d 511, 527 (Tex. 1968) (C.J. Calvert, dissenting) ("Pervading the majority opinion dealing with these sections is a basic philosophy that when a municipality puts in a public utility of its own, with a private utility franchise then outstanding or thereafter granted, the two enterprises must be permitted to enter into a dog-eat-dog, survival of the fittest competition for customers, with the prize of survival going to the one with the greater resources and ability to absorb losses for a longer period of time. In my opinion, the philosophy is unsound. It was condemned long ago by the United States Court of Appeals, [].")

• Board of Firemen's Relief and Retirement Fund Trustees of Texarkana v. Hamilton, 386 S.W.2d 754, 755 (Tex. 1965) ("[S]he contends that since her claim for compensation as provided by statute involves a property right and that even though the statute made no provision for an appeal, that under the due process clauses of both the State and United States Constitutions she is entitled to an inherent right of appeal. . . . What the Constitution guarantees her is a judicial review of an order of an administrative agency affecting her property rights. Such a review must be sought in a court of competent jurisdiction, not to some other administrative agency.")

• State v. Richards, 301 S.W.2d 597, 602 (Tex. 1957) ("The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive . . . . A large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests.")

• Ex parte Sizemore, 8 S.W.2d 134, 135-36 (Tex.Crim.App. 1928) ("Section 19 of our Bill of Rights . . . . Provisions similar to those quoted in our state Constitution have been a part of Anglo-Saxon jurisprudence since there was wrung from the unwilling hands of King John at Runnymede in 1215 the Magna Charta, which itself provides that a freeman shall not be passed upon or condemned but 'by the lawful judgment of his peers and the law of the land.' 'Law of the land' has the same legal meaning as 'due process of law,' and one of its accepted meanings is that quoted above. In re Jilz, 3 Mo. App. 243; 3 Words and Phrases, First Series, pp. 2227-2232.")

• Stockwell v. State, 221 S.W. 932, 935 (Tex. 1920) ("Viewing the powers given the Commissioner by this statute and his attempted exercise of them here, the inquiry naturally arises as to what are the rights of the defendant if the Commissioner was mistaken in his judgment that citrus canker was . . . . Under the contest made by his pleading, before the property of the defendant could be summarily destroyed, he was entitled to a judicial hearing and decision as to whether it ought to be destroyed. As applied to such a case, nothing less would amount to due process of law, without which the Bill of Rights declares no citizen shall be deprived of his property.")

• City of New Braunfels v. Waldschmidt, 207 S.W. 303, 304-05 (Tex. 1918) ("The contention that this ordinance is inconsistent with the liberty guaranteed by the federal and state Constitutions has been too completely repelled by the opinion of the Supreme Court of the United States in Jacobson v. Massachusetts, 197 U.S. 22, 25 Sup.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765, to justify further discussion. . . . However, if defendants in error, or any of them, had a right with respect to the children's school attendance, which could properly be considered a property right, the same was held subject to a valid exercise of the police power of the state.")

• Griner v. Thomas, 104 S.W. 1058, 1060 (Tex. 1907) ("To the contention that suspension without notice is a deprivation of property without due process, the answer is that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination, and hence the application of remedies so provided for does not unduly deprive him of any property. Trigg v. State, 49 Tex. 669. Whether the suspension of the relator's functions took effect at once upon the making of the order, or, as contended by him, only when he received notice of it, is a question which cannot affect this proceeding to vacate the order.")

• Armstrong v. Traylor, 30 S.W. 440, 441 (Tex. 1895) ("Under the provisions of these articles, the interested party is authorized to determine the question of a trespass having been committed by the stock. It is not provided that this question shall be inquired into by any other person or officer. . . . There is no hearing, no inquiry, and no trial before judgment; no officer to sell the property, nor process under which sale is to be made; nothing that bears the faintest resemblance to a judicial proceeding. Such a law affords no security to the owner of the stock. It is not due process of law, and the property is not sold 'by the due course of the law of the land.'")

• Union Cent. Life Ins. Co. v. Chowning, 26 S.W. 982, 984 (Tex. 1894) ("Mr. Cooley, in his work on Constitutional Limitations, adopts, as the best definition, that given by Mr. Webster in the Dartmouth College Case, of the term 'due course of the law of the land,' which is: 'By the 'law of the land' is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' A law which is enacted by the legislature in the exercise of its constitutional powers, and which affords a hearing before it condemns, and renders judgment after trial, is not in violation of this provision of the constitution.")

• Mellinger v. City of Houston, 3 S.W. 249, 253 (Tex. 1887) ("[I]t must be held that the people intended, by [Article I, Section 19], in so far as it is identical with the fourteenth amendment, to place thereby just such restrictions on the powers of the legislature as the highest court in the nation has declared is the true construction of like language made a part of the constitution of the United States for the purpose of placing a limitation on the power of the legislatures of the several states. As construed, that section of the constitution only forbids the making of laws retroactive in effect, whereby title to property which had vested under former laws would be divested.")

• Manning v. San Antonio Club, 63 Tex. 166, 171 (1884) ("Appellant does not pretend that, in his expulsion, the board of directors violated in any way the by-laws of the club. But he insists that . . . . These guaranties were mainly intended to protect the citizen against oppression by the government; but they do not protect him against himself or against his own agreements. When, therefore, persons enter into organizations for purposes of social intercourse or pleasure or amusement, and lay down rules for their government, these must form the measure of their rights in the premises, and it is vain to appeal to the Bill of Rights against their own agreements.")

• Janes v. Reynolds' Adm'rs, 2 Tex. 250, 252 (1847) ("They are now, in their most usual acceptation, regarded as general public laws . . . . Whatever may be the meaning of the terms 'laws of the land,' or 'due course of the law of the land,' they have never been held to enjoin in all cases a trial by jury as a requisite indispensable to the validity of a judgment. That a party should have notice and an opportunity of being heard in his defense, and the right of trying disputed facts by a jury, are cardinal principles of the common law; but there are many exceptions in which one or two of these privileges were never enjoined, or may be regarded as renounced by the defendant.")

Library Resources

• Vernon's Annotated Constitution of the State of Texas (this multi-volume and up-to-date resource is available at all law libraries and many municipal libraries)

• The Texas State Constitution: A Reference Guide (this one-volume resource is available at most law libraries and some municipal libraries)

• The Constitution of the State of Texas: An Annotated and Comparative Analysis (this two-volume resource is available at most law libraries and some municipal libraries)

Online Resources

• Constitution of the State of Texas (1876) (this resource is published and maintained by the University of Texas School of Law)

• Amendments to the Texas Constitution Since 1876 (this resource is published and regularly updated by the Legislative Council)

• Reports Analyzing Proposed Amendments (this resource is published and regularly updated by the Legislative Reference Library)